- Created by: Francesca Marks
- Created on: 14-04-15 13:12
Why do we have offences against property? Is it natural to expect the criminal law to protect private property rights? Most common offence- 60% of recorded crimes. There may be more though as some people consider theirs too trivial. 96% of vehicle theft will be reported (for insurance) but only 30% of personal theft. Individualism, Self ownership, protect markets, maintain social order. Conservative ideas of property.
Background- Theft has concerned criminal law for some time. Legislation started around 17th C. It is quite difficult to break down reported figures but it is about half of all reported crime. The current position is in the Theft Act 1968. Theft forms the basis of many other offences.
b) Theft Act 1968- s1- a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permenantly depriving the other of it. s7- a person guilty of theft shall on conviction on indictment be liable to imprisonment not exceding 7 years.
Actus Reus- 'appropriation of property belonging to another.' Means assumption of any of the rights of the owner- very broad.
a) appropriation- S3- any assumption by a person of the rights of an owner amounts to appropriation and this includes, where he has come by property (innocently or not) ...
without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.' Causes lots of problems- how broadly do you want to persive it? What point does theft take place? Steps to actually deprive is when MR and AR coincide. Normally wait until someone leaves with it so have evidence. Laurence v MPC 1972, R v Morris 1983, R v Gomez 1993 and R v Hinks 2000.
Assumption of any of the rights of the owner is sufficient for appropriation. There no longer needs to be any adverse interference with the rights of the owner. Appropriation could include situations where the owner gives consent. A valid gift can amount to appropriation.
S3(2) - where property or a right or interest in property is, or puports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferors title, amount to theft of property.
b) property- defined in S4- includes money, and all other property, including things in action and other intangible property (eg copyright) Cant steal land, or wild plants or animals.
c) belonging to another- S5 regarded as belonging to the person having possession or control of it or having in it any proprietary right or interest. This is broad, may not be legal owner but could just be looking after it or having rights to it. Smith 2011, Turner (No.2) 1971 and AG's Ref No 1 of 1983 1985.
Mens Rea- 'a dishonest intention to permenantly deprive' Defined negatively, it tells you what it isnt. It is a jury question. What would you consider to be honest in the circumstances?
a) dishonesty- This is in S2. You can argue that you didnt think it was dishonest- it is not a water tight description.
R v Ghosh 1982- this is the test for dishonesty. 'in determining whether the prosecution has proved that the defendant was acting dishonestly a jury must first of all decided whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.' 'If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised what he was doing was by those standards dishonest. In most cases where the actions are obviously dishonest by ordinary standards there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting...
dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest even if he asserts or genuinely believes that he is morally justified in acting as he did.' 'eg Robin Hood or those ardent anti vivisectionists who remove animals from vivisection laboritories are acting dishonestly, even though they may consider themselves to be morally justified in what they do, because they know that ordinary people would consider these actions dishonest.' Lord Lane.
b) intention to permenantly deprive- more extensive than ordinary reading. If take something, consume it and buy another it is still theft as you cant give that exact item back. S6. This says that a borrowing or lending can amount to theft- but the general rule is that it isnt.
Lloyd 1985- 'unless the intention is to return the thing in such a changed state that all its goodness or virtue has gone.' Compare with Velumyl 1989.
What broader themes can we take from the offence of theft? issues of consent- Hinks. Can you steal from yourself? Very statute bases, the breadth of each section. Mens rea is most relevant.
Robbery- seriousness of crime is demonstrated in the sentence. Home office sees it as an offence against the person.
a) the context- very serious, can have up to life imprisonment. This is to punish the threat of force.
b) the offence- S8 Theft Act 1968- a person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts to seek any person in fear of being then and there subjected to force.
The force must be used in order to steal, cannot be used just on its own. Sometimes they extend the time of the theft to fit in the violence.
i) theft- Forrester 1992, Corcoran v Anderton 1980 and R v Vinall 2011.
ii) force - Hale 1978, Dawson and James 1976, Clouden 1987, G v DPP 2012.
a) the offence- s9 Theft Act 1968- a) enters building or part of a building as a trespasser and with the intent to committ any such offence is as is mentioned in section 2 or b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or attempts to inflict on any person therein GBH (doesnt include unlawful damage)
2) the offences refered to in Ss1 are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any gbh therein and of doing unlawful damage to the building or anything therein.
i) actus reus- entry, as a trespasser, of building or part of a building.
ii) entered- R v Collins 1973, R v Brown 1985 and R v Ryan 1996.
iii) a building or part of a building-harsher sentences if domestic dwelling. Fixed down lorry was ruled as a building. B and S v Leathley 1979, Norfolk Constabulary v Seekings and Gould 1986 and Walkington 1979.
iv) trespass- exceed permission. Collins 1972 and Smith and Jones 1976.
v) s9(1)(a): Intent (SOA 2003)- AG Refs No 1 and 2 of 1979 1979
S9(1) (b) : offence committed.
Aggrevated burglary- s10, when you committ burglary with a firearm, imitation fire arm, any weapon of offence or any explosive. Liable for imprisonment for life.
This is an even more serious offence which attracts a very severe penalty and demonstrates the severity with which the law deems the carrying of weapons.
R v O'Leary 1986, R v Stones 1989, Klass 1997 and R v Wiggins 2012.
a) Background- 'the extent of fraud is difficult to measure as it is a deceptive crime,often targeted at organisations rather than individuals. Victims of fraud may be unaware they have been a victim of crime, or may be unaware that any fraudulent activity has occured. As such, many incidents of fraud may not be reported to the police or recalled by CSEW respondents' Office for National Statistics.
The previous law: s15 and 16 of Theft Act 1968 and S1 and 2 of Theft Act 1978: obtaining property or services by deception. Still in existance- common law offence of conspiracy to defraud, which is committed when two people agree to act to the detriment of someone elses financial interests.
b) Fraud Act 2006- doesnt define fraud. Single Offence but 3 types. Sections are s2- fraud by false representation, s3 fraud by failing to disclose information and s4 fraud by abuse of position.
Fraud by false representation- i) representation- words or actions. Idrees v DPP 2011.
ii) falsity- Home Office says misleading means 'less than wholly true and capable of interpretation to the detriment of the victim.'
The mens rea is dishonesty. R v Cornelius 2012.
Intend to cause gain or loss by virtue of the representation. This is in s5 (2)- only gain or loss in money. b) gain or loss whether temporary or permanent. 3) gain is keeping what one has or by getting what one does not have. 4) loss by not getting what one might get, as well as a loss by parting with what one has.
'If an art dealer said 'This is a painting by Renoir, knowing that that statement can have a huge impact on the value of the painting, but not knowing whether it is true and thinking that it might be untrue, it would be for a jury to decide whether he was dishonest. If he was dishonest I see no difficulty in saying that he is guilty of fraud in those circumstances.' AG.
Fraud by failing to disclose information- this is an omission in S3. This can include within family members but it probably wouldnt be detected.
'Such a duty may derive from statute (such as the provisions governing company prospectuses) from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance) from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties...
(such as that of agent and principal). For this purpose there is a legal duty to disclose information not only if the defendants failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non disclosure. For example a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such a disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it.' Law Commission.
Fraud by abuse of position- very broad, common elements the same as the others. 'The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arms length.' Law Commission.
Should the offences be scrapped for dishonesty? Should look at all offences together, common bits and differences.